Court challenges to prorogation

What is the state of play on the court challenges to prorogation?

There have been three challenges to the lawfulness of the government’s decision to prorogue Parliament: one in the courts of England and Wales, one in the Scottish courts and one in the Northern Irish courts.

The High Court in England has rejected the challenge in England and Wales. It decided that the prime minister’s decision to prorogue was “inherently political in nature”, and that there are “no legal standards" against which to judge its legitimacy.

The first judge to hear the Scottish case reached a similar view. However, the challengers in that case appealed to the Inner House of the Court of Session, which ruled on 11 September that the prorogation was unlawful. 

The High Court in Northern Ireland decided not to consider the prorogation challenge, since the issue was already being litigated in England and Scotland. 

On 17 September, the UK Supreme Court will hear a joint appeal from the judgment of the High Court and the Inner House of the Court of Session. It will have the final word on whether the prorogation was lawful or not.

What did the Scottish Court of Session decide about the government’s decision to prorogue Parliament?

The Court of Session has ruled that the prorogation of Parliament that began on 10 September was unlawful.

In a summary of its judgment, the court said that the government’s “true reason” for advising the Queen to prorogue Parliament was to stymie parliamentary scrutiny of the executive. Because parliamentary scrutiny of the executive is a constitutional principle which is essential to democracy and the rule of law, the court said, that means that it was unlawful for the government to advise the Queen to prorogue Parliament, and that the prorogation itself was unlawful.

In particular, according to one of the judges, the reason for the prorogation was to “prevent or impede Parliament holding the executive to account and legislating with regard to Brexit, and to allow the executive to pursue a policy of a no-deal Brexit without further parliamentary interference.”

The court has said that it will issue a declaration that the prime minister’s advice to the Queen, and the prorogation which followed, was “unlawful and is thus null and of no effect”.

Does the court’s ruling mean that Parliament is in session after all?

Because the summary of the court’s judgment says that the prorogation was “null and of no effect”, the challengers say that Parliament was never prorogued at all. However, it appears that the court has only said that it “will” make such an order to that effect, and has not yet actually made the order. This may be because the Supreme Court is due to hear an appeal on 17 September.

Therefore, it appears for now that Parliament is still prorogued.

However, the Court of Session has said that the prorogation was unlawful even if it has not made the order. The government normally responds to legal judgments against it by taking steps to bring itself into compliance with the law. For that reason, the Labour Party has called on the government to recall Parliament immediately. The government has reportedly said that it will await the Supreme Court’s judgment.

Didn’t the English High Court already rule that the prorogation was lawful?

Yes. The English High Court ruled that, according to English and Welsh public law, the prorogation was lawful. The High Court said that the question of whether the government had left MPs sufficient time to hold the executive to account was a political question, which could not be decided by the court. 

However, the Scottish Court of Session does not apply English and Welsh public law. It applies Scottish public law, and was not bound by the decision of the High Court. The Scottish Court of Session ruled that, according to Scottish public law, the prorogation was unlawful.

How might the Supreme Court rule?

The UK Supreme Court is the final court of appeal for both English law, and Scottish law. Both the English and the Scottish cases are now going to be heard together by the Supreme Court.

Because of the constitutional principles at stake, the UK Supreme Court will probably try to render English public law and Scottish public law consistent, so that the prorogation was lawful in both, or unlawful in both.

However, the Supreme Court could in theory agree with both the English High Court and the Scottish Court of Session, and rule that the prorogation was lawful under English law but not under Scottish law. In that case, the prorogation would be unlawful in the UK overall.

What happens now?

The Court of Session will release its full judgment, giving reasons for its decision, on 13 September. The Supreme Court will then hear an appeal on 17 September, and will be under pressure to give a decision very quickly.

If the Supreme Court decides that the prorogation was lawful, then Parliament will remain prorogued until 14 October, or until the government decides to advise the Queen otherwise.

If the Supreme Court decides that the prorogation was unlawful, then there are two possible outcomes. The first is that the court compels the government to bring back Parliament and start a new session immediately. In that case, the government could proceed with a Queen’s Speech which sets out its legislative agenda – but the previous session would be deemed to have ended.

The second possible outcome is that the court rules that the prorogation was a 'nullity' in the eyes of the law and so never happened. In that case, all the bills that had not yet become law when the Queen issued a proclamation to prorogue could continue their passage through Parliament, and there would be no state opening and Queen’s Speech.

What does the court ruling on prorogation mean for Brexit?

Parliament has already legislated to try to prevent a no-deal Brexit on 31 October, by passing the European Union (Withdrawal) (No. 2) Act 2019.

However, the court ruling could still affect Brexit.

First, if the ruling is upheld in the Supreme Court and Parliament sits earlier than expected, then MPs will have more opportunities to scrutinise the government’s Brexit policy as the prime minister both seeks a renegotiated Brexit deal and prepares to leave with no deal. For example, the prime minister had been scheduled to be questioned by the Liaison Committee on 11 September. In addition, the House of Commons would have been able to pass further motions to seek the publication of internal government documents, or to react if the government refused to comply.

Second, if the Supreme Court rules that Parliament was never prorogued at all, then unfinished Brexit-related legislation – which fell at the point of prorogation – would be able to continue its passage through Parliament.

Update date: 
Wednesday, September 11, 2019
Authors: Raphael Hogarth